For many people, a simple will is sufficient. However, if you have a large assets or if you fear a will contest, then you may need to create a complex will along with a trust. To help choose between a simple or complex will, you should analyze all relevant factors, such as your age, potential estate tax, and whether you own a business.

Steps

Part 1

Choosing a Simple Will

1

Find a trusts and estates attorney. If you want to create a will or a trust, then you should contact an estate planning attorney. You can get referrals from people you know who have had a will or trust created. You can also get a referral by contacting your local or state bar association.[1]

Once you have a referral, call the attorney and schedule a consultation. Ask how much he or she charges.

Check your age. If you are under 50, then you might want to consider a simple will.[2] Those under 50 are less likely to have their will challenged in court, so a simple will could satisfy your estate planning needs.

If you are over 50, then you should consider a complex will or a trust, which is harder to challenge in court.

3

Estimate the value of your estate. The larger your estate, the more likely it is that you should create a complex will and trust in order to minimize your estate taxes. For example, you should consider a complex will if your estate will be worth more than $1,000,000.[3]

To estimate the value of the estate, you should add up the value of real estate, cash accounts, insurance policies, investments, and personal property such as vehicles, art, and jewelry.[4]

Identify your heirs. If you have children from a previous marriage, then you might want to create a more complex will. However, if you have no children from a previous marriage, then a simple will can satisfy your needs.[5]

5

Analyze whether someone might challenge the will. If you don’t think anyone will claim undue influence or fraud in the creation of your will, then you could use a simple will.[6] However, if you think someone might challenge the will later on, then you should use a complex will or, ideally, a trust.[7]

Your will is more likely to be challenged if you are elderly when you made it or if you are physically dependent on someone else for food, health care, or shelter.

You also are more likely to have your will challenged if you decide to give more of your assets to one of your children, or if you decide to cut out a child altogether from your will.

Part 2

Choosing a Complex Will

1

Calculate the value of your estate for tax purposes. If the value of your estate could be large when you pass away, you might consider creating a more complex will that fits your needs. To calculate the value of your estate, inventory all of your assets liabilities, and make assumptions about future assets and liabilities. Add together all of your assets and subtract all of your liabilities from that number. While this will not be an exact accounting of your estate's value, it will give you a good idea of where you are at.

For example, you could make a spreadsheet that lists all of your assets in one column. Your assets might include a home, a car, personal belongings, insurance policies, bank accounts, and anything else you own of value. Then, in another column, you can list all of your liabilities. Liabilities might include student loans, credit card bills, and a mortgage.

In addition to calculating the current value of your estate, you also need to establish an estimate of what you think your estate will be worth when you pass away. For example, it might be fair to assume a lot of your liabilities will be gone by the time you pass away (e.g., your mortgage and credit cards will be paid off). However, you might also assume that you will take on other liabilities (e.g., a second home). Make a list of these future assets and liabilities.

Subtract the value of your liabilities from the value of your assets to get a rough estimate of your estate's value.

2

Check for state and federal estate tax thresholds. You don’t have to pay federal estate tax unless your estate is worth more than $5.45 million after allowable deductions (such as charitable gifts).[8] The federal estate tax kicks in over that amount.

Several states, however, impose state estate tax, and the tax can kick in well before the federal tax. For example, in New Jersey, estates worth more than $675,000 may have to pay estate tax.[9] In Massachusetts, you may have to pay estate tax on estates valued at $1,000,000 or more.[10]

Therefore, if the estimated value of your estate eclipses any state or federal tax threshold, you should consider creating a complex estate plan, including a complex will, in order to avoid as much tax liability as possible.

3

Analyze the value of a complex will. You could minimize the amount of estate taxes that you pay if you create a complex will or a trust instead of a simple will.[11] This is the case because estate taxes, and their thresholds, only apply to assets and liabilities going through probate (i.e., when there is a will). A complex will and exhaustive estate plan can help avoid the probate process by distributing your assets outside of probate. By doing this, you avoid the estate taxes and ensure your property will be passed down according to your wishes.

4

Predict whether your assets will increase. You might have few assets now. However, if you anticipate earning much more money in the future, then you might want to create a complex will.[12]

For example, you could be completing your education and anticipate that your income and assets will increase substantially over the coming decades. In this situation, you could create a complex will instead of a simple one.

Alternately, you could create a simple will but draft a newer, more complex will later on.

5

Analyze your family situation. Sometimes a complex will is more appropriate depending on our family situation. For example, check if any of the following apply:[13]

You have a previous spouse. An ex-spouse could lead a will contest, so you might be better off with a trust.

You want to create a joint will with your spouse. You will need a more complex will if the will is for the two of you.

You have a disabled child you want to provide for. In this situation, you may need to create a trust to provide for the child.

6

Decide if you want to create a trust. Sometimes creating a complex will along with a trust will better accomplish your estate planning goals. You can create what is called a “pour over” will.[14] In a pour over will, you create a trust and then state in your will that all of your assets at your death will be poured into the trust.[15]

You want to give your children equal amounts of money, then you should create a trust.

You want to provide for a pet. In this situation, you should create a trust along with your will.

You should also create a testamentary trust in your will if you want to leave more than $12,000 or so to a minor child.[16]

7

Choose a complex will if you have a business. You should definitely choose a more complex will if you are a business owner.[17] For example, you have to address in your will whether the beneficiary who gets your business should get it without the debt.[18]

If you don’t clarify, then your personal representative might not be able to sell estate assets to pay off the business debt. In that situation, your beneficiary takes the business—and the debt.

Part 3

Drafting Your Will

1

Create a simple will with a template. You can draft a simple will yourself. All you need is a will template. To draft your own will, get one of the following:[19]

Will software. This software asks you a series of questions and then creates a will depending on your answers. You can find this software at a bookstore or an office supply store.

Online software. Online programs are like will software except they are accessible online. You are walked through a series of questions and the program creates a will based on your answers.

Statutory forms. Some states have passed laws which contain will templates you can use. Because the legislature has approved the template, you can be sure that your will is valid if you use it. However, sometimes statutory wills need to be revised to reflect your circumstances.

2

Gather helpful documents to show the lawyer. To prepare for your consultation, you should gather all relevant documents related to your estate. Your lawyer might provide you with a checklist. If not, then be sure to bring the following:[20]

Copies of any current estate planning documents, such as wills or trusts.

A prenuptial, postnuptial, or domestic partnership agreement.

A list of assets, including individually- or jointly-owned assets.

A list of debts, including individual debts and joint debts.

An estimate of your net worth, including life insurance and retirement assets.